Hendrick v. Cleaveland

• Decision Date: 01 April 1828
• Parties: ADIN HENDRICK and REBECCA HENDRICK v. BENJAMIN CLEAVELAND
• Court: Vermont Supreme Court

2 Vt. 329

ADIN HENDRICK and REBECCA HENDRICK v. BENJAMIN CLEAVELAND

Supreme Court of Vermont, Orleans

April, 1828

[Syllabus Material] [Syllabus Material] [Syllabus Material]

This was an action of ejectment, for the recovery of a certain tract or parcel of land in Morristown. It appeared on trial in the county court that the action was brought for the lands in question by the said Adin and Rebecca, as a part of the real estate of Alexander Donihue, her late husband, and were a part of the lands claimed by the said Rebecca, as decreed to her by the judge of probate for the district of Fairhaven in this state, and that said Donihue died testate in the year 1814, leaving no father or children--that he had bequeathed certain legacies to said Rebecca, in lieu of dower, and which said Rebecca had waived within sixty days after the will was proved and approved, and claimed her allowance under the statute, The plaintiffs shewed seizin and possession in said Donihue, and that said Donihue died seized. The defendant then offered a copy of the will of said Donihue and probate thereof, by which it appeared, that the lands in question were given by said Donihue to the town of Morristown, to be rented for the use of schools in said town. Defendant then offered to show by parol evidence that he held under the town of Morristown, and had paid rent to said town; which was objected to by the plaintiff upon the ground that the defendant held by lease duly executed and recorded in said town: but the court overruled the objection, and admitted the evidence. The defendant here rested his case. The plaintiffs then offered the records of the court of probate to show that one half of the real estate was decreed to the said Rebecca, as her share of the real estate of her late husband, Alexander Donihue, which included the lands in question. To this record the defendant objected, because it appeared that the judge of probate had ordered and decreed that said Rebecca was entitled to one half of her late husband's real estate in fee forever, when she was entitled to the use of only one third during her life: which objection was allowed, and said records excluded. A verdict was returned for the defendant.

A bill of exceptions, stating the foregoing facts, was agreed to by the parties, and the plaintiff removed the cause to this Court on a motion for a new trial, founded on an alleged error in the decision of the county court.

Affirmed.

Fletcher and Sawyer, for the plaintiff.--The only question in this case is, if a testator die without issue, leaving a widow, and in his will leave property to her, and she waive the provisions made her in the will, what right or benefit she then has in the estate. If a widow waive the provisions made for her in the will, she shall have her dowry assigned her in the same manner as though her husband had died intestate.--Old stat. p. 175, law of 1799.--The Old stat. p. 130, sec. 30, gives such widow one half of both real and personal estate, which she shall be entitled to in lieu of her dower. Without said 30th section, such widow is entitled to no part of her husband's estate, not even the use of one third. Such widow can never claim by virtue of the 32d section of said act; for the kind of dower there created and defined is intended for the common benefit of all widows not otherwise provided for; and that, even though there be issue who may inherit, though the estate be insolvent, and even though they have been otherwise endowed by way of jointure. Therefore, whatever benefit the widow in this case is entitled to out of her husband's estate, she takes by those special benefits granted to her in said 30th section and in said act of 1799; and has no part in the benefit contained in said 32d section. The dower or portion of the estate here claimed, as well as every kind of dower in this state, is created and defined by our statute. And notwithstanding the dower given by the 32d section is in some respects likened to dower by the common law, (as common law dower stands at this time,) yet, in other respects, is vastly different. For by common law, it is of all a person possessed during coverture. But by said 32d section it is of all a person died seized and possessed in his own right. But the benefit here claimed is perhaps wholly unknown in England, notwithstanding there are various kinds of dower known in England at this time. It is a benefit created by our statute and is, perhaps, unknown except in Vermont. It may be contended that the word dower is strictly a technical word, conveying in the word itself its whole definition, or, at least, that but one possible definition could attach to it. But it cannot be so taken, unless it be in its most general sense, as explained or defined by Cruise, vol. 1, p. 125, as being that which a widow acquires in her husband's lands. It is a benefit which the widow may receive from her husband's estate. In this general sense it may be considered technical. But not with regard to the amount or the kind of estate she may receive. For there are various kinds of dower now extant in England. Our statute has also created and defined various kinds of benefits, both in amount and tenure, which the widow shall receive from her husband's estate. One by sec. 32d, where the widow shall have one third of the real estate for life. One by sec. 30th and 31st, where the widow shall be entitled to have one half of the real and personal estate forever. One by sec. 73d and provisos, where the widow shall be entitled to the whole of her deceased husband's estate. If dower were strictly a technical word, there would have been no necessity of defining the amount or nature of the estate in sec. 32d. But our several kinds of dower, or modes of being endowed, as well as our law of descents, are created and explained wholly by our statute. Therefore, the only technical definition that can attach to the word dower is, " that kind of benefit which the widow is entitled to receive out of the estate of her husband by operation of law," whether that be by common law, by statute law, whether general or special, or by particular custom. And Lord Bacon even says that is the common bye-word of the law, that the law favoreth three things, life, liberty, and dower.--Cruise, page 134. Here, as in England, the husband cannot by will divest his widow of that legal claim she has on his estate by operation of law. In England the widow is entitled both to what is given her by her husband's will, and dower also. In which last case, she can make her election which she will choose, as by our statute of 1799,--1 Cruise, 179, & c.--By the statute of 1799, the widow shall not receive dower and the provisions made for her in her husband's will, but must elect, even though such provisions be not expressed to be in bar of dower. Therefore, it would seem that the law favors dower, or that which a widow acquires by law in her husband's estate, so that it cannot be taken from her except by her own consent. With us, the law favors the widow so far that she may waive her jointure (her own contract) and claim her legal benefits. She may waive the provisions of a will and claim her legal benefits. And even though an estate be insolvent, yet there is a common benefit decreed to the widow by the favor of the law. This favor to the widow of what she acquires in her husband's estate, by operation of law, seems ever to have been paramount to every other favor shown to property; so that it is even coupled with that of life and liberty. It is even so far protected, that it is not liable on a debt due the crown.--Cruise, 157.--Neither can the widow's right be devised away by the husband. But the construction asked for by the defendant in the present case would deprive the widow of all benefit, in as much as she can take no benefit by the said 32d section. By such a construction the law, which was intended for a benefit, would have the greatest possible injury. The benefits intended in the 30th section would be made void by the statute of 1799. For the husband by devising his wife one dollar, or one cent, might thereby deprive her of what otherwise was intended for her by the law.

Again, if the husband without issue should devise one half of his estate to the widow, without severing it from the remainder; such devise would be void, for a devise is void if it be of what the law the already gives. For in such case she takes by operation of law, and her share must be assigned to her in the same manner as if her husband had died intestate.--4 Cruise, 144, 145.--If a particular thing be given or limited in the preceding part of a statute, it shall not be taken away or altered by any subsequent general words.--1 Sw. Dig. 12, no. 15.

Paddock for the defendant.--The inquiry is, If the widow has waived her right under the will, what does the law give her in its stead? The 30th section of the probate act of 1797, gives the half of both personal and real estate to the widow, in certain cases; but not where there is a will. Likewise the 73d section, in case there is no will, gives the whole estate to the widow upon certain conditions. But in no case, where there is a will proved and approved, does the widow receive more than is given her by the 32d section of the same act, unless she takes it as a bequest. The 32d section wisely provides, that a widow may waive her jointure, and not be subjected to the merciless will of an unfeeling husband, after his death; but upon her petition being filed with the judge, within 60 days after the approval of the will, she shall be put in possession of her dower.--Old Stat. p. 165. The provision that a widow...